How The Election Commission Cheats & Misleads About Election Offences

The Election Offences Act 1954

"An Act to prevent electoral offences and corrupt and illegal practices at elections..."

(Notes by Sarawak Headhunter in red)

This is an important piece of legislation that understood, interpreted and enforced correctly could have a significant impact on the outcome of elections by reducing or eliminating electoral offences as well as corrupt and illegal practices at elections (especially by the ruling UMNO/BN regime), thereby levelling the playing field.

Over the years the Malaysian Elections Commission has conspired with the ruling regime to selectively misinterpret and enforce the provisions of the Act in its favour and to maintain it in power.

Among the more serious abuses include gerrymandering and disproportionate representation, which go to the heart of the electoral system, yet no party has taken the EC and UMNO/BN to court to have these abuses rectified, probably because the courts have also been subverted by UMNO/BN.

It is therefore essential for all parties to know exactly what the Act is all about and what its more important parts say so that voters may be educated and can make informed decisions important for their and the nation's future:

PART II
ELECTORAL OFFENCES

Offences by any person

3. (1) Any person who—

(a) knowingly makes any false statement on or in connection with any application to be placed on any register of electors;

Such a false statement may include giving a wrong address, declaring oneself to be a citizen when one is not, for example.

(b) forges or fraudulently defaces or fraudulently destroys any nomination paper, or delivers to a returning officer any nomination paper knowing the same to be forged;

(c) forges or counterfeits or fraudulently defaces or fraudulently destroys any ballot paper or the official mark on any ballot paper;

Used to stuff ballot boxes with invalid and fraudulent "votes". Normally this can only happen with the connivance of the EC and out of sight of observers, especially if the ballots would need to be transported to a counting centre. There is normally a short period when no one except EC officers are allowed in the polling stations after polling has closed and before counting begins. This is the time hwen such dirty work is done.

(d) without due authority supplies any ballot paper to any person;

Used for "phantom" voters.

(e) sells or offers to sell any ballot paper to any person or purchases or offers to purchase any ballot paper from any person;

(f) not being a person entitled to be in possession of any ballot paper which has been marked with any authorized mark has any such ballot paper in his possession;

A "phantom" voter or UMNO/BN ruling party person in charge of bribing voters at any particular locality.

(g) puts into any ballot box anything other than the ballot paper which he is authorized by law to put in;

(h) without due authority takes out of the polling station any ballot paper or is found in possession of any ballot paper outside a polling station;

One of the methods used by the ruling party to pay voters who pretend to vote, then bring out the blank ballot paper, passes it to a ruling party representative who then pays them, marks the blank ballot in favour of BN, passes it to the next voter who then puts it in the ballot box and brings out his blank ballot paper, and the process carries on. The EC in the meantime pretends that no such thing is going on.  

(i) without due authority destroys, takes, opens, or otherwise interferes with any ballot box, ballot paper or packet of ballot papers in use or intended to be used for the purposes of an election;

Usually occurs after polling is closed and before the counting begins at the same station, when the polling/counting station is off limits to all except EC officials. Also occurs when ballot boxes are transported by helicopter, road or speedboat from the polling stations to a distant counting station.
 

(j) without due authority prints any ballot paper or what purports to be or is capable of being used as a ballot paper at an election;

Usually done by the EC itself and therefore not easy to catch.

(k) for the purposes of an election, manufactures, constructs, imports, has in his possession, supplies or uses, or causes to be manufactured, constructed, imported, supplied or used, any appliance, device or mechanism by which a ballot paper may be extracted, affected or manipulated after having been deposited in a ballot box during the polling at any election;

(l) votes at any election when he is not entitled to vote thereat;

A "phantom" voter, in certain areas such as Sabah usually an "illegal" citizen given a Malaysian identity card with the connivance of and in collusion with the National Registration Department, the Immigration Department, Ministry of Home Affairs, the Elections Commission and other relevant authorities, both State and Federal.
 

(m) prints any advertisement, handbill, placard or poster which refers to an election and contains a reproduction of a ballot paper, or of what purports to be a ballot paper, to be used or likely to be used at such election;

NOT allowed of course, contrary to what the EC has said recently. What is allowed is stated in the proviso below and applies during the campaign period. 

It must be noted that an electoral offence does not necessarily have to take place within the campaign period only, but can also take place in the run-up to an election, such as now, for example.

(n) obstructs or prevents a voter who is otherwise entitled to vote from voting at an election; or

Usually happens in rural areas, where it is easier to intimidate voters. Whole villages or longhouses are cordoned off, usually by gangsters in the pay of the ruling party, even during the campaign period.  Making likely opposition voters too drunk to wake up until after polling is closed or bringing them for a joy-ride to the nearest town with some pocket money while polling is going on are other favourite tricks of the BN ruling party. 

(o) votes in an election at more than one polling station in the same constituency or a different constituency,

Such "phantom" voters are usually transported around various polling stations by the ruling party in buses or vans.

shall be liable, on conviction, to imprisonment for a term not exceeding two years or to a fine not exceeding five thousand ringgit or to both such imprisonment and fine and, subject to any provision to the contrary in any written law relating to any election, shall until the expiration of five years from such conviction, be incapable of being registered or listed as an elector or of voting at any election or of being elected at any election, and if at that date he has been elected at any election, his seat shall be
vacated from the date of such conviction:

Provided that nothing in paragraph (m) shall be deemed to prohibit, during the campaign period, the printing in any such advertisement, handbill, placard or poster of the name or symbol of one candidate only, together with a reproduction of a cross or other mark indicating approval of any such name or symbol.

Offences by election officers

4. Any officer, clerk, interpreter or other person having any duty to perform pursuant to any written law relating to any election who—

(a) makes, in any record, return or other document which he is required to keep or make under such written law, any entry which he knows or has reasonable cause to believe to be false, or does not believe to be true;

(b) permits any person whom he knows or has reasonable cause to believe not to be a blind person or an incapacitated person to vote in the manner provided for blind persons or incapacitated persons;

(c) refuses to permit any person whom he knows or has reasonable cause to believe to be a blind person or an incapacitated person to vote in the manner provided for blind persons or incapacitated persons;

(d) wilfully prevents any person from voting at the polling station at which he knows or has reasonable cause to believe such person is entitled to vote;

(e) wilfully rejects or refuses to count any ballot paper which he knows or has reasonable cause to believe is validly cast for any candidate in accordance with the provisions of such written law;

(f) wilfully counts any ballot paper as being cast for any candidate, which he knows or has reasonable cause to believe was not validly cast for such candidate; or

(g) is without reasonable cause guilty of any act or omission in breach of his official duty,

Again these offences are not easy to catch, especially when they are (illegally) sanctioned and committed by the EC itself, which will come up with all kinds of spurious reasons for whatever they do or do not do.

...

Offence of promoting feelings of ill-will or hostility

4A. (1) Any person who, before, during or after an election, directly or indirectly, by himself or by any other person on his behalf, does any act or makes any statement with a view or with a tendency to promote feelings of ill-will, discontent or hostility between persons of the same race or different races or of the same class or different classes of the population of Malaysia in order to induce any elector or voter to vote or refrain from voting at an election or to procure or endeavour to procure the election of any person shall be liable, on conviction, to imprisonment for a term not exceeding five years or to a fine not exceeding ten thousand ringgit or to both such imprisonment and fine.

Going by this offence, which is usually committed by the government and ruling-party controlled main stream media acting on their behalf, most ruling party candidates including their top leadership would be disqualified from standing in elections.

PART III
CORRUPT PRACTICES

Personation

7. Every person who at an election applies for a ballot paper in the name of some other person, whether that name be that of a person living or dead, or of a fictitious person or who, having voted once at any such election, applies at the same election for a ballot paper in his own name, shall be guilty of the offence of personation.

As evidenced at the Sabah RCI hearing, one of the modus operandi used by UMNO/BN in collusion with the NRD and the EC, to get illegal citizens/voters to vote on behalf of registered voters who either have not or have not yet turned up to vote.

Treating 

8. Every person who, corruptly, by himself or by any other person, either before, during or after an election, directly or indirectly gives or provides or causes to be given or provided, or is accessory to the giving or providing, or pays or engages to pay wholly or in part, the expense of giving or providing any food, drink, refreshment or provision, or any money or ticket or other means or device to enable the procuring of any food, drink, refreshment or provision, to or for any person for the purpose of corruptly influencing that person or any other person to give or refrain from giving his vote at such election or on account of any such person or any other person having voted or refrained from voting or being about to vote or refrain from voting at such election, and every elector or voter who corruptly accepts or takes any such food, drink, or refreshment or provision or any such money or ticket or who adopts such other means or device to enable the procuring of such food, drink, refreshment or provision shall be guilty of the offence of treating.


A frequently flaunted provision of the election offences law, normally conducted in full view of the EC and other relevant authorities, none of who bother to the extent that such abuse has become accepted practice, usually even demanded by voters. 

Undue influence
 

9. (1) Every person who, before, during or after an election, directly or indirectly, by himself or by any other person on his behalf, makes use of or threatens to make use of any force, violence, or restraint, or inflicts or threatens to inflict, by himself or by any other person, any temporal or spiritual injury, damage, harm, or loss upon or against any person in order to induce or compel such person to vote or refrain from voting, or on account of such person having voted or refrained from voting, at any election, or who by abduction, duress, or any fraudulent device or contrivance impedes or prevents the free exercise of the franchise of any elector or voter, or thereby compels, induces, or prevails upon any elector or voter either to give or refrain from giving his vote at any election, or who directly or indirectly interferes or attempts to interfere with the free exercise by any person of any electoral right shall be guilty of the offence of undue influence.

Another provision of election offences law fequently abused, even and especially in the mainstream media controlled by UMNO/BN, without any action being taken by the EC or any other relecvant authorities.

(2) A person shall be deemed to interfere with the free exercise of the electoral right of a person within the meaning of this section who induces or attempts to induce such person to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure.

Commonplace.

Bribery

10. The following persons shall be deemed guilty of the offence of bribery:

(a) every person who, before, during or after an election, directly or indirectly, by himself or by any other person on his behalf, gives, lends, or agrees to give or lend, or offers, promises, or promises to procure or to endeavour to procure, any money or valuable consideration to or for any elector or voter, or to or for any person on behalf of any elector or voter or to or for any other person, in order to induce any elector or voter to vote or refrain from voting, or corruptly does any such act as aforesaid on account of such elector or voter having voted or refrained from voting at any election;

Commonplace. Evidence abounds about this practice, especially by the UMNO/BN ruling regime in giving all kinds of handouts and allocations or promises thereof under the pretext of government assistance or projects for the people. The EC and other relevant authorities see nothing wrong with such illegal practices that usually coincide with elections.

(b) every person who, before, during or after an election, directly or indirectly, by himself or by any other person on his behalf, gives or procures, or agrees to give or procure, or offers, promises, or promises to procure or to endeavour to procure, any office, place or employment to or for any elector or voter, or to or for any person on behalf of any elector or voter, or to or for any other person, in order to induce such elector or voter to vote or refrain from voting, or corruptly does any such act as aforesaid on account of any elector or voter having voted or refrained from voting at any election;
 

(c) every person who, before, during or after an election, directly or indirectly, by himself or by any other person on his behalf, makes any such gift, loan, offer, promise, procurement, or agreement as aforesaid to or for any person in order to induce such person to procure or endeavour to procure the election of any person, or the vote of any elector or voter at any election;
 

(d) every person who, either before or during an election, upon or in consequence of any such gift, loan, offer, promise, procurement or agreement, procures or engages, promises or endeavours to procure, the election of any person, or the vote of any elector or voter at an election;
 

(e) every person who, either before or during an election, advances or pays or causes to be paid any money to, or to the use of, any other person with the intent that such money or any part thereof shall be expended in bribery at any election or who knowingly pays or causes to be paid any money to any person in discharge or repayment of any money wholly or in part expended in bribery at any such election;

(f) every elector or voter who, before or during any election directly or indirectly, by himself or by any other person on his behalf, receives, agrees, or contracts for any money, gift, loan, or valuable consideration, office, place or employment, for himself or for any other person, for voting or agreeing to vote or for refraining or agreeing to refrain from voting at any such election;

(g) every person who, after any election, directly or indirectly, by himself or by any other person on his behalf, receives any money or valuable consideration on account of any person having voted or refrained from voting or having induced any other person to vote or to refrain from voting at any such election;

(h) every person who, after an election, directly or indirectly, by himself or by any other person on his
behalf, on account of and as payment for voting or for having voted or for agreeing or having agreed to vote for any candidate at an election, or on account of and as payment for his having assisted or agreed to assist any candidate at an election, applies to such candidate, or to his agent or agents, for the gift or loan of any money or valuable consideration, or for the promise of the gift or loan of any money or valuable consideration or for any office, place or employment or for the promise of any office, place or employment; and

(i) every person who, either before or during an election, directly or indirectly, by himself or by any person on his behalf, in order to induce any other person to agree to be nominated as a candidate or to refrain from becoming a candidate or to withdraw if he has become a candidate, gives or procures any office, place or employment, or agrees to give or procure or offers or promises to procure or to endeavour to procure any office, place or employment, to or for such other person, or gives or lends, or agrees to give or lend, or offers, or promises to procure or to endeavour to procure any money or valuable consideration to or for any person or to or for such other person, or to or for any person on behalf of such other person.

ALL illegal practices of the UMNO/BN ruling regime condoned by the partisan EC and other relevant authorities.

Punishment and incapacities for corrupt practice 

11. (1) Every person who—
 

(a) commits the offence of personation, or aids, abets, counsels or procures the commission of the offence of personation;

(b) commits the offence of treating, undue influence or bribery;

(c) prints, publishes, distributes or posts up or causes to be printed, published, distributed or posted up any advertisement, handbill, placard or poster which refers to any election and which does not bear upon its face the names and addresses of its printer and publisher;

(d) makes or publishes, before or during any election, for the purpose of affecting the return of any candidate, any false statement of fact in relation to the personal character or conduct of such candidate;

(e) makes or publishes, before or during any election, for the purpose of promoting or procuring the election of any candidate, any false statement of the withdrawal of any other candidate at such election; or

(f) being a candidate or election agent knowingly makes the declaration as to election expenses required by section 23 falsely, shall be guilty of a corrupt practice, and shall, on conviction by a Sessions Court, be liable, in the case referred to in paragraphs (a) and (b), to imprisonment for a term not exceeding two years and to a fine of not less than one thousand ringgit and not more than five thousand ringgit, and, in any other case, to imprisonment for a term not exceeding one year and to a fine not exceeding two thousand ringgit. Offences under paragraphs (a) and (b) shall be seizable offences within the meaning of the Criminal Procedure Code.

(2) Every person who is convicted of a corrupt practice shall, subject to any specific provision to the contrary in any written law relating to any election, by conviction become incapable of being registered or listed as an elector or of voting at any election or of being elected at any election, and if at that date he has been elected at any election, his seat shall be vacated from the date of
such conviction:

Provided that such disability shall cease on the expiry of five years from such conviction.

(3) A prosecution for a corrupt practice except any corrupt practice as defined in paragraphs (1)(d) and (e) shall not be instituted without the sanction of the Public Prosecutor.

PART IV
ELECTION AGENT, ELECTION EXPENSES ANDILLEGAL PRACTICES

...

Prohibition of certain expenses during campaign period

15A. (1) No expenses shall, with a view to promoting or procuring the election of a candidate, be incurred during the campaign period, by any person other than the candidate, his election agent and persons authorized in writing by the election agent on account—

(a) of holding, convening or organizing any open public meeting, open public rally, open public display or open public entertainment or giving open public address or lecture;

(b) of printing or issuing advertisements, circulars or publications; or

(c) of otherwise presenting to the electors the candidate or his views or the extent or nature of his backing, or disparaging another candidate:

Provided that this paragraph shall not—
 

(i) restrict publication in a newspaper or other periodical of any matter relating to the election;

(ii) apply to expenses incurred by any person in travelling or in living away from home, or to similar personal expenses.

(2) Where a person incurs any expenses required to be authorized by an election agent under subsection (1), he shall within fourteen days after the date of publication of the result of the election in the Gazette send to the election agent a return, accompanied by a declaration made by him (or in the case of an association or body of persons, a director, general manager, secretary or other similar officer thereof) verifying the return and giving particulars of the matters for which the expenses were
incurred:

Provided that this subsection shall not apply to any person engaged or employed for payment or promise of payment by the candidate or his election agent.

...

Expenses in excess of maximum to be illegal practice

 
19. (1) Subject to such exception as may be allowed in pursuance of this Act, no sum shall be paid and no expense shall be incurred by a candidate at an election or by his election agent, after the date of publication of the notice of the election in the Gazette, during or after an election, on account of or in respect of the conduct or management of such election, in excess of—
 

(a) two hundred thousand ringgit in the case of an election to the Dewan Rakyat;
 

(b) one hundred thousand ringgit in the case of an election to a Legislative Assembly;
 

(c) ten thousand ringgit in the case of an election to a local authority other than a local council;
 

(d) three thousand ringgit in the case of an election to a local council:

Provided that paragraphs (c) and (d) shall have no application in Sabah and Sarawak.

(2) Any candidate or election agent who knowingly acts in contravention of this section shall be guilty of an illegal practice.

It is a well-known fact that on top of everything else, UMNO/BN candidates spend far more than the legally allowed maximum, even going into the millions. There is no real enforcement, even if it happens under the very eyes of a compliant EC. Complaints are more often than not just swept aside or ignored. 

Even the courts have been cooperative in deciding that party expenditure as a whole does not constitute part of each candidate's expenditure, thereby allowing a loophole through which hundreds of millions are allowed to be spent by the party in elections, even though the total expenditure far exceeds each candidate's allowed expenditure when divided amongst all the party's candidates.

Certain expenditure to be illegal practice

20. (1) No payment or contract for payment shall, for the purpose of promoting or procuring the election of a candidate at any election, be made—

(a) on account of the conveyance of electors or voters to or from the poll, whether for the hiring of vehicles, vessels or animals of transport of any kind whatsoever, or for railway fares, or otherwise; or

(b) to or with an elector or voter on account of the use of any house, land, building, or premises for the exhibition of any address, bill, or notice, or on account of the exhibition of any address, bill or notice.

(2) Subject to such exception as may be allowed in pursuance of this Act, if any payment or contract for payment is knowingly made in contravention of this section either before, during, or after an election, the person making such payment or contract shall be guilty of an illegal practice, and any person receiving such payment or being a party to any such contract, knowing the same to be in contravention of this section, shall also be guilty of an illegal practice.

(3) A person shall not let, lend, or employ for the purpose of conveyance of electors or voters to and from the poll any vehicle, vessel or animal of transport of any kind whatsoever which he keeps or uses for the purpose of letting out for hire, and if he lets, lends, or employs such vehicle, vessel or animal of transport knowing that it is intended to be used for the conveyance of electors or voters to and from the poll he shall be guilty of an illegal practice.

(4) A person shall not hire, borrow, or use for the purpose of conveyance of electors or voters to and from the poll any vehicle, vessel or animal of transport of any kind whatsoever which he knows the owner thereof is prohibited by subsection (3) to let, lend, or employ for that purpose, and if he does so he shall be guilty of an illegal practice.

(5) Nothing in subsection (3) or (4) shall prevent a vehicle, vessel or animal of transport of any kind being let to, or hired, employed, or used by an elector or voter or several electors or voters at their joint cost for the purpose of being conveyed to or from the poll.

(6) Notwithstanding anything in the preceding provisions of this section—

(a) where it is the ordinary business of an elector or voter as an advertising agent to exhibit for payment, bills and advertisements, a payment to or contract with such elector or voter, if made in the ordinary course of business, shall not be deemed to be an illegal practice within the meaning of this section;

(b) where electors or voters are unable at an election to reach their polling stations from their place or residence without crossing the sea or a branch or arm thereof or a river, means may be provided for conveying such electors or voters to their polling stations, or to enable them to cross the river in order to reach their polling stations, and the amount of payment for such means of conveyance may be in addition to the maximum amount of expenses allowed by this Act:
 

Provided always that such means of conveyance shall be made available equally to all such electors or voters who wish to avail themselves thereof.

Another provision largely abused during elections, especially by UMNO/BN.

Limitation of political propaganda on nomination day

24A. (1) No person shall, on nomination day or days—

(a) furnish or supply any musical instrument or loud speaker to any person with intent that it shall be used by any person in any way or used in or upon any vessel, animal, motor car, truck or other vehicle; or

(b) use himself or use in or upon any vessel, animal, motor car, truck or other vehicle any such musical instrument or loud speaker, as, or for the purpose of, political propaganda.

(2) No person shall, on nomination day or days, wait or loiter within a distance of fifty metres from the limit of any place of nomination.

(3) Any person who contravenes any of the provisions of this section shall be liable, on conviction, to imprisonment for a term not exceeding one year or to a fine not exceeding three thousand ringgit or to both such imprisonment and fine.

Yet another provision largely abused with impunity during elections, especially by UMNO/BN. 

It will be seen that all the EC's actions or inactions and manipulations are calculated to give the greatest advantage in elections to UMNO/BN, no matter what the law says. This combined with the collusion of almost all government institutions almost guarantee UMNO/BN wins most elections, except when the majority vote for the opposition is so overwhelming that it cannot be covered by such manipulations.

It is an uphill battle, and every vote will count in GE-13 against all the breaches of law, cheating, bribery, promises, coercion, threats and other multitude of election offences that UMNO/BN will commit to win.

A victory for the opposition in GE-13 will be a victory for the future of the Malaysian people against oppression, injustice, intolerance, abuse of power, mismanagement and misgovernance, etc. etc. of the cursed ruling UMNO/BN regime.

ALLAH bless Malaysia.